Broadwell v. Ryerson

This is an action brought by the guardian ad litem of a minor, to be referred to herein as plaintiff, against Claude L. Ryerson, to recover damages for injuries suffered when he came into contact with the Ryerson car at 4th and Pine Streets in the city of Long Beach. Plaintiff had proceeded south on the west side of Pine and was struck in the intersection of Pine and 4th Streets. Defendant was driving west on 4th Street. Defendant’s answer denied negligence and alleged contributory negligence of plaintiff as a defense. In a jury trial, verdict and judgment were for the defendant.

Plaintiff had subpoenaed as a witness one Jessie F. Westergard; she failed to appear when the trial commenced on Thursday, August 22, 1946; the case was on trial throughout that day, four witnesses testified for plaintiff and the trial was continued to the following morning. Upon the opening of the morning session on Friday, plaintiff’s counsel made a motion for a continuance of the trial until the following week. As ground for the continuance it was stated that the witness had been subpoenaed on August 5, had requested that she be excused, that her request had been denied on at least three different occasions, that she had left the city on her vacation and thereafter caused to be conveyed to plaintiff’s attorneys her promise to return on 24 hours’ notice, that she had been called by telephone immediately when counsel knew the trial was to proceed, that an attempt had been made to reach her that morning by telephone at her home, her place of employment, and at a vacation resort which was within 8 hours’ driving time from the court. It was stated positively by counsel that the witness had not been excused. Nevertheless, the court stated: “I think the effect of that was to excuse her and the motion for continuance will be denied inasmuch as it would cause the Court to be impotent for the period of one year-Mr. Price: In that event, your Honor, we will dismiss on behalf of the plaintiff. The Court: You make a motion to dismiss? Mr. Price: Make a motion to dismiss at this time. The Court: Is there any objection to that?” There was an objection on the ground that defendant had a witness present

Plaintiff made a motion for new trial, supported by affidavits. Mr. Price made affidavit that after Mrs. Westergard had been subpoenaed he had a call from a Mr. Fraser, of the office of an oil company where Mr. Westergard worked, stating that Mr. Westergard would be on vacation on August 22, and that Mrs. Westergard desired to be excused from attendance, that the affiant refused to excuse her; that affiant, a few days later, called Mr. Fraser and advised him that it would be impossible to excuse Mrs. Westergard, and that on August 20 Mr. Fraser called the affiant and told him that the Westergards were at June Lake on their vacation and that upon one day’s notice Mrs. Westergard would appear as a witness, that Mrs. Westergard was contacted by telephone and she was told to be in court at the very latest at 10 a. m. August 23. It was further stated in the affidavit that Mrs. Westergard was a witness to the accident and that her testimony was essential to a fair determination of the case. Mrs. Westergard made affidavit, that she was on the scene when plaintiff was injured, that she was among those who started to cross the intersection of Pine and 4th Streets, that the crowd started to cross 4th Street when the signal turned to ‘ ‘ Go, ’ ’ and that the boy was struck at a point which would be in the crosswalk across 4th, at the west side of Pine. She stated that she had been served with a subpoena on August 5, that when she went to June Lodge she believed that her husband had made an arrange

No affirmative relief was sought by defendant and therefore plaintiff insists that he had an absolute right to dismiss the action by motion in open court, as well as by written request to the clerk. It is settled that a dismissal by the clerk is mandatory and that the jurisdiction of the court is ended upon the filing of a request under the conditions specified in subdivision 1 of section 581, Code of Civil Procedure. It is plaintiff’s contention that under similar conditions a motion made in open court deprives the court of jurisdiction to do otherwise than dismiss the action. This would be true if the court has no discretion in the matter. Defendant replies that although plaintiff had the right, prior to the 1947 amendment of section 581, to dismiss the action by filing a written dismissal with the clerk, it was discretionary with the court to grant or deny the motion made in open court. We agree with defendant on this point. It is not true that the court must grant the motion; it may in its discretion either grant or deny it. Denial of the motion raises the question of the proper exercise of discretion and not the question of jurisdiction. (Boca etc. R. R. Co. v. Superior Court,

Plaintiff’s alternative contention that it was an abuse of discretion to deny the motion is well founded. From the record, as above quoted, we readily conclude that the motion to dismiss should have been granted. A material witness had been placed under subpoena and plaintiff’s attorneys had denied several requests that she be excused from appearance on August 22. She left Long Beach without either the express or implied consent of the attorneys. After she had departed she caused plaintiff to be notified, by her husband’s attorney, that she would appear as a witness upon 24 hours’ notice. When it became certain that the case would go to trial August 22, she was promptly contacted and promised in good faith that she would appear the following morning. These matters were before the court during the trial. It was made to appear, later, by affidavit, of Mrs. Westergard, that she made the mistake of endeavoring to return by plane, instead of by automobile, and was unable to make connections in time. The facts of the situation as they were presented during the trial afforded no basis for the conclusion persisted in by the court that plaintiff’s attorneys had excused the witness. The facts were directly to the contrary. The court’s statement that to grant the motion, which was for a continuance from Friday morning until Monday, “would cause the court to be impotent for the period of one year, ’ ’ is something we cannot fathom. If it was meant that any continuance granted would have to be for a period of not less than one year, we still would be unable to reconcile such a procedural oddity with our conception of the duty of a trial court to so adjust its procedure in emergencies that litigants will not be unnecessarily deprived of substantial rights. Where the enjoyment of substantial rights of a litigant conflicts with the mere convenience of the court, the rights should not be forfeited in order that the court be not discommoded. If the request had been granted the trial would thereby have been postponed but a single day. With the courts overflowing with work, a trial judge with an open day on his calendar, and who wished to employ it to advantage, should not find it necessary to remain idle. Plaintiff’s attorneys were not to blame for the unfortunate situation. The blame rested entirely upon the witness. WThen it appeared that it was un

It is unnecessary to discuss the court’s refusal to issue a bench warrant for the' witness or its refusal to reopen the case for the receipt of the testimony of the witness, Westergard, when she appeared. These situations would not have arisen if the motion to dismiss had been granted. They are of interest only as illustrating the persistent and good faith, although futile, efforts of plaintiff’s attorneys to present their case properly.

The judgment is reversed.

Wood, J., and Vallée, J. pro tem., concurred.